Complainant

Respondent

Anonymised Parties

Bus Driver

Transport Company

Representatives

Mr. Mark Greaney, National Executive of the National Bus & Rail Union

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056692-001

16/05/2023

The Complainant commenced employment with the Respondent on 8th February 2023. The Complainant was a full-time employee, in receipt of a weekly wage of €753.24. The Complainant’s employment lasted for fifteen days only, and terminated by was of resignation on 23rd February 2023.

On 16th May 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that she was subjected to sexual harassment by an employee of the Respondent, in the course of her duties. By response, the Respondent accepted that the Complainant raised an allegation of sexual harassment in accordance with their internal policies. In this respect, they submitted that this matter was fully investigated and thereafter, on the balance of probabilities, they determined that no such harassment occurred.

A hearing in relation to this matter was convened for, and finalized on, 9th April 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaints, while a Senior Manager gave evidence in defence. At the outset of the hearing, it was noted that the Respondent had not called any witnesses in respect to the allegations raised in the course of her employment. In this respect, the parties agreed that the investigation undertaken by the Respondent outlined the entirety of the allegations and responses on the allegations. In this regard, it was noted that while the Complainant took issue with the outcome in relation to the same, she took no issue with the investigation itself. At the outset of the hearing, the Complainant was offered an adjournment of the hearing to allow for the attendance of the relevant witnesses for the Respondent. Having briefly considered the same, the Complainant declined and stated that she wished to proceed on the basis of a consideration of the report as the relevant evidence for the hearing.

As the subject matter of the hearing is extremely sensitive, this decision will be anonymized in its published form.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent on 8th February 2023. At all relevant times, the Complainant’s role was described as that of “bus driver”. As the Complainant was new to this role, she began a period of training at the outset of this employment.

Towards the end of this two week training period, the Complainant and another trainee were receiving instruction from a more senior colleague. As part of this training process, the senior colleague in question made various explicit comments of a sexual nature while demonstrating the starting procedure for the vehicle. Later on, while demonstrating the function of a panic button located under the dash of the vehicle, the instructor made another, extremely inappropriate sexual reference. Finally, while the Complainant was adjusting the driver’s seat of the vehicle, the instructor made another explicitly sexual comment relating to the Complainant herself. Following this series of comments, the Complainant felt emotionally drained and sickened and stated that she did not wish to take the bus out for the driving part of the instruction. Despite her clear request in this regard, the instruction ignored the wishes of the Complainant and stated that they should continue. While the Complainant was completing the driving portion of the instruction, she stopped at a red light. At this point, her instructor asked why she had stopped, to which the Complainant replied that the light was red. Nonetheless, the instructor stated that the Complainant had right of way and should continue. Immediately after proceeding, the instructor laughed and chided the Complainant for driving through a red light. At this point the Complainant stated that she had had enough of this treatment and stated that she could no longer continue with the training session. At the first safe opportunity, the Complainant parked the bus, exited same and walked back to the bus depot.

On the Complainant’s return to the bus depot, she had to wait for the supervisor to return to allow her access to the training room in order to recover her possessions. On his return the Complainant handed back the company jacket and keys to the bus. When the supervisor asked why she was handing back these items, the Complainant stated that she could not continue in the role. When the supervisor asked why this was the case, the Complainant stated that his comments throughout the day were extremely inappropriate. At this point the supervisor stated that he was sorry. The Complainant further stated that it was extremely inappropriate to ask her to run a red light, to which the instructor stated that he did not intend to hurt the Complainant. Thereafter, the Complainant and the instructor went into an adjoining room to speak with one of the Complainant’s colleagues. During this conversation, the Complainant’s instructor stated that he wished to apologise for his earlier comments, to which the other trainee stated that he did not know what the comment was. The supervisor also apologised for making the Complainant run through a red light. Following these exchanges, the Complainant left the premises. Thereafter, following consultation with her trade union, the Complainant referred a detailed complaint in accordance with the Respondent internal sexual harassment procedure.

In the following weeks, the Complainant fully engaged with the investigation carried out by the Respondent. Following the completion of the same, the Complainant was extremely disappointed to discover that her complainants were not upheld. In this regard, the Complainant pointed to numerous inaccuracies in the statements provided by the training supervisor as part of the process. In particular, the Complainant referred to a portion of the investigation where the instructor stated that he had no need to call a mechanic over to adjust a driver’s seat. In contradiction of this statement, the mechanic in question stated that he was called over to adjust the seat. The Complainant further referred to the initial statement of the training supervisor whereby he stated that he would never use the word “rape” in training. During a subsequent interview, the supervisor trainer stated that in response to a question in respect of the panic button, he replied that the same is to be used “in emergencies such as serious verbal altercations or threats of violence towards you i.e., assault, rape.” The Complainant further observed that it was accepted that the training instructor apologised to both her and the other trainee on the date in question. Having regard to the foregoing points, the Complainant submitted that the inaccuracies outlined demonstrated untruth on the part of the training instructor and should have been enough to weigh the balance of probabilities in her favour. The Complainant was also critical of the investigation for failing to produce the relevant CCTV footage of the incident.

By submission, the Complainant stated that the sexual harassment she suffered within the first two weeks of her introductory training caused her extreme humiliation and embarrassment. She submitted that she could not continue in the role as a consequence of the same and resigned her position shortly thereafter. She outlined her extreme disappointment at the outcome of the investigation and submitted that given the inaccuracies in the position adopted by the training supervisor, the balance of probabilities should have been in her favour. As a consequence of the accumulation of foregoing points, the Complainant submitted that her application should succeed and that her complaint of sexual harassment against the Respondent should be deemed to be well founded.

By response, the Respondent accepted that they received an allegation of sexual harassment raised by the Complainant. Following the receipt of this complaint, an investigation team was convened comprising of a senior employee relations manager and a people operations manager. This team then conducted an investigation of the allegations raised by the Complainant in accordance with the harassment section of the Respondent’s dignity and respect policy.

Thereafter, the investigators convened numerous meetings with the Complainant with the assistance of her trade union representative. During the first such meeting, held on 26th May 2023, the investigators met with the Complainant to establish the particulars of the complaint. On this date, statements were taken from two other persons that would appear to be relevant witnesses as per the initial written complaint. Thereafter, on 11th July, the investigation team met with the training supervisor to interview him in relation to the complaint and statement of the Complainant. On 21st July 2023, the team met with the other trainee reference by both the Complainant and the training instructor. Finally, on 26th July 2023, the team met with one final witness potentially relevant to the matter. Following a period of six weeks, this aspect of the investigation was completed, with the Complainant being continually updated in relation to the same, and receiving all statements as they became available.

Thereafter, the investigators considered the statements and evidence provided by the parties. In this respect, they noted that the training instructor denied making each of the comments attributed to him. In circumstances, whereby the parties appeared to be in a direct contravention of evidence, the investor then looked to any corroborating evidence that might substantiate the respective versions of the events. In this regard, they noted that the other trainee, who was present for a good deal of the adverse treatment complained of, stating that he observed no such treatment occurring. In this regard, it was noted that regarding some of the incidents complaint of, this witness did not simply state that they could not recall or did not observe the adverse treatment, but categorically stated that the same did not occur. In such circumstances, given that independent evidence existed that corroborated the training supervisor’s version of events in some matters, and no corroborating evidence existed to corroborate the Complainant’s version of events, they found, on the balance of probabilities, that the Complainant’s allegations were not upheld.

In response, to the alleged inconsistencies raised by the Complainant, the training supervisor stated that the same did not have any material effect on the outcome of the investigation. In this regard, he stated that the fact remained that the training supervisor in question denied the wrong-doing in question, and that independent evidence existed that corroborated this version of events. Regarding the CCTV footage, the investigator accepted that the same was not collected as part of the process, however he submitted that the same would have no evidentiary value. In this regard, he submitted that the allegations raised by the Complainant were verbal in nature and that the CCTV in question does not record sound.

Having regard to the foregoing, and in reliance of the report complied in accordance with their internal procedures, the Respondent submitted that they were correct to find that, on the balance of probabilities that the adverse treatment complained of did not occur.

In the present case, the Complainant has alleged that she was sexually harassed by a colleague whilst employed by the Respondent. In denying this allegation, the Respondent submitted that on receipt of the written complaint regarding the adverse treatment, they conduct a thorough investigation into the allegation and the surrounding circumstances. Following same, they submitted that, on the balance of probabilities, the allegations raised by the Complainant were not upheld, a position they reiterated as their defence to the allegations at the hearing of the matter. During the hearing, the Complainant was critical of the outcome of the investigation, stating that certain inconsistent statements on the part of the alleged perpetrator should have demonstrated the untruth of his statement as a whole.

In this regard, part one of Section 14(A) of the Act provides,

“…where...(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is…

(i) employed at that place or by the same employer, or

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

Part seven of that section goes on to provide,

" In this section—

(i)      references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)     references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person 's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."

In the matter of Nail Zone Ltd v A Worker EDA 1023, the Labour Court held that,

"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person 's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."

Regarding the burden of proof in relation to such matter, Section 85A provides that,

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

...

(4) In this section “discrimination” includes—

…

(c) harassment or sexual harassment”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Regarding the instant case, while the parties are in dispute as to the central fact of the matter, it is accepted that the remarks attributed to the Complainant former supervisor would constitute sexual harassment, should it be determined that the same occurred. In this regard, it is noted that the Respondent is not seeking to rely on the defence outlined is Section 14(2) of the Act, but submits that the alleged harassment did not occur at all. In this respect they submit that the Complainant cannot demonstrate the primary facts upon which the complaints of harassment are made, and that as a consequence of the same, the complaint should fail.

Regarding the evidence adduced at the hearing, the Complainant gave sworn evidence in support of the allegations raised.  At the outset of the hearing, it was explained to the Complainant that in such instances, the Respondent would be obliged to call witnesses, and particularly the alleged perpetrator of the harassment, to give evidence to contradict that of the Complainant. In this regard, the Complainant was offered an adjournment of the hearing to allow for the attendance of such witness or witnesses. Following a brief adjournment in which the Complainant considered this position, she started that she had no wish to face the witnesses for the Respondent or to cross examine them in relation to the statements they provided during the investigation. In this respect she submitted that the hearing could proceed by way of an examination of the investigation itself, and her submissions in relation to the same. On foot of this submission, the parties agreed that the hearing would be conducted in such a manner, with the Respondent relying on the substance of their internal investigation in defence of the Complainant’s allegations. 

In this respect, the Respondent submitted that they conducted a thorough, and comprehensive investigation of the allegations raised by the Complainant. They stated that they took statements from each of the parties involved and any witnesses named by either the Complainant or the alleged perpetrator.  From a review of the statement of the alleged perpetrator, it is apparent that he denied making each of the statements attributed to him and further denied the allegation that he induced the Complainant to drive through a red light. In such circumstances, the investigators submitted that they examined the statements of the witnesses to determine whether either version of events could be corroborated. In this regard, two of the witnesses identified by the parties stated that they were not in the vicinity of the parties when the alleged incidents occurred and, consequently, their statements were of limited evidentiary value. Notwithstanding the same, the statement of the Complainant’s fellow trainee, who was apparently present for many of the interactions, stated that the incidents did not occur. In this regard, his statement was not to the effect that he did not hear each of the conversation or that he could not recall the relevant particulars, rather regarding two distinct allegations, he positively stated that the incidents did not occur at all. Placing reliance on this statement, and applying the balance of probabilities, the Respondent came to the conclusion that the allegations were not upheld, and as a consequence, denied the factual basis on which the Complainant alleged harassment in the course of her duties.

The position adopted by the Complainant was that the statement of her former instructor was not a truthful account of their interactions, and that she suffered verbal harassment of a sexual nature whilst being trained by him. In this regard, the Complainant referred to two allegedly inconsistent statements on the part of the alleged perpetrator.  Firstly, she submitted that the alleged perpetrator confirmed that a mechanic did not attend to put back a driver’s seat, while the mechanic maintains that he completed this task at the relevant time. Secondly, the Complainant submitted that the alleged perpetrator initially stated that he would never use the word “rape” in an instruction context, while later on he stated that the panic button was to be used in situations such a serious assault or rape. Having regard to the foregoing, she submitted that these inconsistencies arose as a result of a lack of truth on the part of the alleged perpetrator, and that the same should weight the balance of probabilities in her favour.

In this respect, it is noted that in assessing the various statements of the parties, the Respondent sought corroboration of the same from alternative witness evidence, and based their outcome on the same. In this respect, the inconsistencies alleged by the Complainant do not interfere with this position or render moot the statement of the witness to many of the events.  In addition to the same, the inconsistency regarding the attendance of the mechanic is not a central detail in respect of the outcome of the investigation, and had limited consequences in relation to the same. It is further noted that the when the alleged perpetrator stated that the panic button was for serious assault or rape, he was speaking hypothetically, and was not giving an account of the language used on that occasion.

During the hearing, the Complainant was critical of the Respondent’s failure to saved and distribute the CCTV footage of the incident. In this respect, the Respondent has a duty to preserve all relevant evidence in relation to the incident, even in circumstances whereby they determine that the same has limited or no evidentiary value. However, having considered the particular factual matrix of the instant case, it is apparent that the CCTV would have no probative value in relation to the allegations raised by the Complainant and again, could not have a material influence of the outcome reached by the Respondent.

Having regard to the totality of the evidence presented by the parties, the finding of the Respondent is reasonable in circumstances. In this respect, it is apparent that the Respondent interviewed all relevant witnesses and surrounding circumstances in respect to the allegations raised by the Complainant. Following this process, the Respondent relied on an independent witness statement in failing to uphold the Complainant’s allegations. While the Complainant is naturally aggravated by this outcome, the same is reasonable given all the circumstances and evidence available to the Respondent.

Having regard to the accumulation of forgoing points, I find that the Complainant has not established the primary points from which an inference of discrimination, and by extension harassment, can be adduced. As a consequence of the same, I find that her complaint is not well-founded, and her application fails.

I find that the Respondent did not discriminate against the Complainant.

Harassment, Internal Investigation, Evidence, CCTV, Sexual Harassment